-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DHzAYWFVn6tpwMGLsowoATU9uslFBqbDMv8DCj9Cx8pkVM5GT/kN2vIb+oVZcVED omIiSo62GKzw/vJVzZuMIg== 0000947871-05-001749.txt : 20050922 0000947871-05-001749.hdr.sgml : 20050922 20050922153653 ACCESSION NUMBER: 0000947871-05-001749 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20050922 DATE AS OF CHANGE: 20050922 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: INFOGRAMES ENTERTAINMENT SA CENTRAL INDEX KEY: 0001100953 IRS NUMBER: 000000000 STATE OF INCORPORATION: CA FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 82-84, RUE DU LER MARS 1943 STREET 2: FRANCE CITY: FRANCE STATE: A1 ZIP: 00000 MAIL ADDRESS: STREET 1: 82-84, RUE DU LER MARS 1943 STREET 2: FRANCE CITY: FRANCE STATE: A1 ZIP: 00000 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ATARI INC CENTRAL INDEX KEY: 0001002607 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 133689915 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-47017 FILM NUMBER: 051098154 BUSINESS ADDRESS: STREET 1: 417 FIFTH AVENUE CITY: NEW YORK STATE: NY ZIP: 10016 BUSINESS PHONE: 2127266500 MAIL ADDRESS: STREET 1: 417 FIFTH AVENUE CITY: NEW YORK STATE: NY ZIP: 10016 FORMER COMPANY: FORMER CONFORMED NAME: INFOGRAMES INC DATE OF NAME CHANGE: 20000511 FORMER COMPANY: FORMER CONFORMED NAME: GT INTERACTIVE SOFTWARE CORP DATE OF NAME CHANGE: 19951023 SC 13D/A 1 sc13da_092205.txt SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549, U.S.A. SCHEDULE 13D under the Securities Exchange Act of 1934 (Amendment No. 10) ATARI, INC. (F/K/A INFOGRAMES, INC., F/K/A GT INTERACTIVE SOFTWARE CORP.) (Name of Issuer) Common Stock, par value $0.01 per share (Title of Class of Securities) 04651M 10 5 (CUSIP Number) Frederic Monnereau Infogrames Entertainment SA 1 place Verrazzano 69252 Lyon Cedex 09 France +33 (0) 4 37 64 30 00 --------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) September 15, 2005 ------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this Schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]. Check the following box if a fee is being paid with this statement [ ].
Schedule 13D - --------- ------------------------------------------------------------------------- ---------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE INFOGRAMES ENTERTAINMENT SA PERSON - --------- ------------------------------------------------------------------------- ---------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) [ ] (b) [ ] - --------- ------------------------------------------------------------------------- ---------------------------- 3 SEC USE ONLY - --------- ------------------------------------------------------------------------- ---------------------------- 4 SOURCE OF FUNDS (SEE INSTRUCTIONS) SC, OO - --------- ------------------------------------------------------------------------- ---------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO [ ] ITEMS 2(d) to 2(e) - --------- ------------------------------------------------------------------------- ---------------------------- 6 CITIZENSHIP OF PLACE OF ORGANIZATION FRANCE - --------- ------------------------------------------------------------------------- ---------------------------- Number of shares 7 SOLE VOTING POWER 69,262,447(1) ----- --------------------------------------------------- ---------------------------- beneficially owned by 8 SHARED VOTING POWER 260,000(2) ----- --------------------------------------------------- ---------------------------- each reporting person 9 SOLE DISPOSITIVE POWER 69,262,447(3) ----- --------------------------------------------------- ---------------------------- with 10 SHARED DISPOSITIVE POWER 0 - ------------------------- ----- --------------------------------------------------- ---------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 69,522,447(4) - --------- ------------------------------------------------------------------------- ---------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] (SEE INSTRUCTIONS) - --------- ------------------------------------------------------------------------- ---------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 51.6%(5) - --------- ------------------------------------------------------------------------- ---------------------------- 14 TYPE OF REPORTING PERSON CO - --------- ------------------------------------------------------------------------- ----------------------------
_________________________ (1) Includes (i) 60,251,784 shares of Common Stock (the "CUSH Owned Shares") directly held by California U.S. Holdings, Inc., a wholly-owned subsidiary of Infogrames, following the sale by CUSH of 11,000,000 shares to eight institutional investors on January 13, 2005, (ii) 2,000,000 shares of Common Stock (the "Atari License Shares") issued to Atari Interactive, a wholly-owned subsidiary of Infogrames, as part of the extension of the Atari name license, and 7,010,663 shares of Common Stock (the "IESA Owned Shares"), out of which 865,612 shares were issued to Infogrames Entertainment S.A. as part of the restructuring on September 18, 2003 and 6,145,051 were issued to Infogrames Entertainment S.A. pursuant to an Agreement Regarding Issuance and to a GT Interactive UK Settlement of Indebtedness Agreement dated September 15, 2005. (2) Represents a proxy for the vote of 260,000 shares of Common Stock (the "Cayre Director Proxy Shares") held by the Cayre family. (3) Includes (i) CUSH Owned Shares, (ii) the Atari License Shares, and (iii) the IESA Owned Shares. (4) Includes (i) CUSH Owned Shares, (ii) the Atari License Shares, (iii) the IESA Owned Shares and (iv) the Cayre Director Proxy Shares. (5) Based on 134,748,670 shares of the Company's Common Stock outstanding as of September 15, 2005.
- --------- ------------------------------------------------------------------------- --------------------------- 1 NAME OF REPORTING PERSON CALIFORNIA U.S. HOLDINGS, INC. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON - --------- ------------------------------------------------------------------------- --------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) [ ] (b) [ ] - --------- ------------------------------------------------------------------------- --------------------------- 3 SEC USE ONLY - --------- ------------------------------------------------------------------------- --------------------------- 4 SOURCE OF FUNDS (SEE INSTRUCTIONS) AF - --------- ------------------------------------------------------------------------- --------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO [ ] ITEMS 2(d) to 2(e) - --------- ------------------------------------------------------------------------- --------------------------- 6 CITIZENSHIP OF PLACE OF ORGANIZATION CALIFORNIA - ------------------------- ------ -------------------------------------------------- --------------------------- Number of shares 7 SOLE VOTING POWER 60,251,784(6) ------ -------------------------------------------------- --------------------------- beneficially owned by 8 SHARED VOTING POWER 260,000(7) ------ -------------------------------------------------- --------------------------- each reporting person 9 SOLE DISPOSITIVE POWER 60,251,784(8) ------ -------------------------------------------------- --------------------------- with 10 SHARED DISPOSITIVE POWER 0 - --------- ------------------------------------------------------------------------- --------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 60,511,784(9) - --------- ------------------------------------------------------------------------- --------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] (SEE INSTRUCTIONS) - --------- ------------------------------------------------------------------------- --------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 44.9%(10) - --------- ------------------------------------------------------------------------- --------------------------- 14 TYPE OF REPORTING PERSON CO - --------- ------------------------------------------------------------------------- ---------------------------
_________________________ (6) Represents the 60,251,784 CUSH Owned Shares, following the sale by CUSH of 11,000,000 shares to eight institutional investors on January 13, 2005. (7) Represents the 260,000 Cayre Director Proxy Shares. (8) Represents the 60,251,784 CUSH Owned Shares. (9) Includes (i) CUSH Owned Shares and (ii) the Cayre Director Proxy Shares. (10) Based on 134,748,670 shares of the Company's Common Stock outstanding as of September 15, 2005. This Amendment No. 10 ("Amendment No. 10") to the Schedule 13D filed on December 14, 1999, as amended by Amendment No. 1 filed with the Securities Exchange Commission (the "SEC") on January 10, 2000, as amended and restated by Amendment No. 2 filed with the SEC on May 26, 2000, as amended by Amendment No. 3 filed with the SEC on October 4, 2000, as amended by Amendment No. 4 filed with the SEC on January 8, 2001, as amended by Amendment No. 5 filed with the SEC on September 24, 2003, as amended by Amendment No. 6 filed with the SEC on February 24, 2004, as amended by Amendment No. 7 filed with the SEC on June 18, 2004, as amended by Amendment No. 8 filed with the SEC on January 14, 2005, and as amended by Amendment No. 9 filed with the SEC on January 18, 2005 (as so amended, the "Schedule 13D"), is filed by the undersigned to further amend the Schedule 13D. The Schedule 13D is filed with respect to the common stock, par value $.01 per share (the "Common Stock") of Atari Inc. (formerly known as Infogrames, Inc., formerly known as GT Interactive Software Corp.), a Delaware corporation (the "Company"). Capitalized terms used and not defined in this Amendment No. 10 shall have the meanings ascribed to them in the Schedule 13D. Except as specifically provided herein, this Amendment No. 10 does not modify any of the information previously reported in the Schedule 13D. Item 2. Identity and Background. This item is hereby amended and restated in its entirety to read as follows: (a) Infogrames Entertainment SA ("Infogrames") and California U.S. Holdings, Inc., a wholly owned subsidiary of Infogrames (previously the Schedule 13D "Purchaser" and henceforth "CUSH", and together with Infogrames, the "Filing Persons"). (b) Infogrames is a societe anonyme organized under the laws of France. CUSH is a California corporation. (c) The address of the principal office of Infogrames is 1, place Verrazzano, 69252 Lyon Cedex 09 France. The address of the principal office of CUSH is c/o Atari, Inc. 417 Fifth Avenue, New York, NY 10016. (d) The principal business activities of the Filing Persons is the holding of equity interests in companies engaged in the business of development and distribution of computer software. (e) During the past five years, neither Filing Person has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (f) Neither Filing Person is, nor, during the last five years, was subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws as a result of a civil proceeding before a judicial or administrative body of competent jurisdiction nor has any such judicial or administrative body found either Filing Person was in violation of such laws. Set forth on Exhibit 1 to this Statement, and incorporated herein by reference, is the name, residence or business address, present principal occupation or employment, and citizenship, of each executive officer and director of the Filing Persons, and the name of any corporation or other organization in which such occupation or employment is conducted, together with the principal business and address of any such corporation or organization other than Infogrames or CUSH, as the case may be, for which such information is set forth. To the best of the Filing Persons' knowledge, none of the Filing Persons' directors or executive officers, (a) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) has been a party to a civil proceeding before a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 4. Purpose of the Transaction Item 4 is amended to add the following paragraph: On September 15, 2005 the Company issued 6,145,051 shares of Common Stock to Infogrames. Item 5. Interest in Securities of the Issuer Item 5 is amended to add the following statements to each of the following paragraphs: (a) The responses of the Filing Persons to Rows (11) through (13) of the cover pages of this Statement are incorporated herein by reference. The calculation of the following percentages is based on the number of shares of Common Stock disclosed as outstanding as of September 15, 2005. Following the Company's issuance of 6,145,051 shares of its Common Stock to Infogrames on September 15, 2005, Infogrames is the beneficial owner of 69,522,447 shares of the Company. Based upon 134,748,670 shares of the Company's Common Stock being outstanding, such Common Stock represents 51.6% of the outstanding shares of the Company. Except as disclosed in this Item 5(a), none of the Filing Persons nor, to the best of their knowledge, any of the persons listed on Exhibit 1 to this Statement beneficially owns any Shares or has the right to acquire any Shares. (b) The responses of the Filing Persons to (i) Rows (7) through (10) of the cover pages of this Statement on Schedule 13D and (ii) Item 5(a) hereof are incorporated herein by reference. Except as disclosed in this Item 5(b), none of the Filing Persons nor, to the best of their knowledge, any of the persons listed on Exhibit 1 to this Statement presently has the power to vote or to direct the vote or to dispose or direct the disposition of any of the Shares which they may be deemed to beneficially own. (c) The responses of the Filing Persons to Item 4 hereof are incorporated herein by reference. Except as disclosed in this Statement, none of the Filing Persons nor, to the best of their knowledge, any of the persons listed on Exhibit 1 to this Statement has effected any transaction in the Shares during the past 60 days. (d) To the best knowledge of the Filing Persons, no other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Shares beneficially owned by the Filing Persons. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. Item 6 is amended to add the following paragraph: Pursuant to (i) an Agreement Regarding Issuance of Shares, executed on September 15, 2005, by and between the Company and Infogrames, the Company's majority stockholder and (ii) a GT Interactive UK Settlement of Indebtedness Agreement, executed on September 15, 2005, by and between the Company, on one hand, and Atari UK, Infogrames and all of its subsidiaries on the other hand, on September 15, 2005, the Company issued an aggregate of 6,145,051 shares of its Common Stock to Infogrames and/or its subsidiaries. 4,881,533 of such shares were issued as payment for development costs incurred and for future costs to be incurred in the ordinary course of business. 1,263,518 of such shares were issued as payment for outstanding indebtedness. The shares were issued without registration under the Securities Act of 1933. Item 7. Materials to Be Filed as Exhibits Exhibit 1 Chart Regarding Executive Officers and Directors of Filing Persons. (Filed on 1/14/2005 as Exhibit 1 to Schedule 13D to Amendment No. 8 and incorporated herein by reference.) Exhibit 2 Joint Filing Agreement between the Filing Persons. (Filed on 12/14/1999 as Exhibit 2 to Schedule 13D and incorporated herein by reference.) Exhibit 3 Securities Purchase Agreement, dated as of November 15, 1999, among the Company and the Filing Persons. (Filed on 12/14/1999 as Exhibit 3 to Schedule 13D and incorporated herein by reference.) Exhibit 4 Short Term Note of the Company in the Principal Amount of $25.0 million. (Filed on 12/14/1999 as Exhibit 4 to Schedule 13D and incorporated herein by reference.) Exhibit 5 Warrant to Purchase 50,000 shares of Common Stock, issued to CUSH. (Filed on 12/14/1999 as Exhibit 5 to Schedule 13D and incorporated herein by reference.) Exhibit 6 5% Subordinated Convertible Note of the Company, issued to CUSH. (Filed on 1/10/2000 as Exhibit 6 to Amendment No.1 to Schedule 13D and incorporated herein by reference.) Exhibit 7 Equity Purchase and Voting Agreement, dated as of November 15, 1999, among the Filing Persons and the GAP Entities. (Filed on 12/14/1999 as Exhibit 8 to Schedule 13D and incorporated herein by reference.) Exhibit 8 Form of GAP Warrant. (Filed on 12/14/1999 as Exhibit 9 to Schedule 13D and incorporated herein by reference.) Exhibit 9 Exchange Agreement, dated as of November 15, 1999, among the Company and the GAP Entities. (Filed on 12/14/1999 as Exhibit 10 to Schedule 13D and incorporated herein by reference.) Exhibit 10 Form of Equity Purchase and Voting Agreements, dated as of November 15, 1999, among the Filing Persons and the members of the Cayre Group. (Filed on 12/14/1999 as Exhibit 11A to Schedule 13D and incorporated herein by reference.) Exhibit 11 Note Purchase Agreement, dated as of November 15, 1999, between certain members of the Cayre Group and CUSH. (Filed on 12/14/1999 as Exhibit 11B to Schedule 13D and incorporated herein by reference.) Exhibit 12 Right of First Offer Agreement, dated as of November 15, 1999, among CUSH and the Lenders. (Filed on 12/14/1999 as Exhibit 13 to Schedule 13D and incorporated herein by reference.) Exhibit 13 Supplemental Agreement, dated May 19, 2000, between Edmondson, Ward and Infogrames. (Filed on 10/04/2000 as Exhibit 13 to Amendment No. 3 and incorporated herein by reference.) Exhibit 14 Warrant Agreement, dated as of February 15, 2000, among the Company and CUSH, and Warrant to Purchase 45,000 shares of Common Stock (225,000 shares before Reverse Stock Split), issued to CUSH. (Filed on 10/04/2000 as Exhibit 14 to Amendment No. 3 and incorporated herein by reference.) Exhibit 15 Second Amended and Restated Registration Rights Agreement, dated as of October 2, 2000, between CUSH and the Company. (Filed on 10/04/2000 as Exhibit 15 to Amendment No. 3 and incorporated herein by reference.) Exhibit 16 Agreement and Plan of Merger, dated as of September 6, 2000, by and among the Company, Merger Sub, Infogrames, CUSH and INA. (Filed by the Company on 09/12/00 as Exhibit A to its Proxy Statement on Schedule 14C and incorporated herein by reference.) Exhibit 17 Stock Purchase and Exchange Agreement, dated December 28, 2001, among Infogrames and the Sellers. (Filed on 01/04/2001 as Exhibit 16 to Amendment No. 4 and incorporated herein by reference.) Exhibit 18 Convertible Subordinated Note issued by the Company to Infogrames, on December 28, 2001, in a principal amount of $40,812,000. (Filed on 01/04/2001 as Exhibit 17 to Amendment No. 4 and incorporated herein by reference.) Exhibit 19 Convertible Subordinated Note issued by the Company to Infogrames, on December 28, 2001, in a principal amount of $9,188,000. (Filed on 01/04/2001 as Exhibit 18 to Amendment No. 4 and incorporated herein by reference.) Exhibit 20 Trademark License Agreement, dated as of September 4, 2003, among Infogrames, Atari Interactive and the Company. (Filed by the Company on 09/05/03 as Exhibit 10.71 to its Registration Statement on Form S-2 and incorporated herein by reference.) Exhibit 21 Agreement Regarding Satisfaction of Debt and License Amendment, dated as of September 4, 2003, among CUSH, Infogrames and the Company. (Filed by the Company on 09/18/03 as Exhibit 10.70 to its Registration Statement on Form S-2 and incorporated herein by reference.) Exhibit 22 Underwriting Agreement, dated September 18, 2003, among the Company, Infogrames and UBS Securities LLC, Harris Nesbitt Gerard, Inc., and SoundView Technology Corporation, as Managing Underwriters. (Filed by the Company on 09/18/03 as Exhibit 1 to its Registration Statement on Form S-2 and incorporated herein by reference.) Exhibit 23 ISDA Master Agreement, dated June 11, 2004, between CUSH and Nexgen. (Filed on 6/18/2004 as Exhibit 23 to Amendment 7 and incorporated herein by reference.) Exhibit 24 Transaction Confirmation, dated June 11, 2004, between CUSH and Nexgen, as amended on June 15, 2004. (Filed on 6/18/2004 as Exhibit 24 to Amendment 7 and incorporated herein by reference.) Exhibit 25 Amendment, dated June 15, 2004, to Transaction Confirmation, dated June 11, 2004, between CUSH and Nexgen. (Filed on 6/18/2004 as Exhibit 25 to Amendment 7 and incorporated herein by reference.) Exhibit 26 Registration Rights Agreement, dated June 11, 2004, between CUSH and Nexgen. (Filed on 6/18/2004 as Exhibit 26 to Amendment 7 and incorporated herein by reference.) Exhibit 99.1 Letter Agreement, dated October 28, 2004, between CUSH and Nexgen amending the Transaction Confirmation. (Filed on 1/14/2005 as Exhibit 99.1 to Schedule 13D to Amendment No. 8 and incorporated herein by reference.) Exhibit 99.2 Letter Agreement, dated December 21, 2004, between CUSH and Nexgen relating to the Termination of the Transaction. (Filed on 1/14/2005 as Exhibit 99.2 to Schedule 13D to Amendment No. 8 and incorporated herein by reference.) Exhibit 99.3 Form of Letter Purchase Agreement, dated January 13, 2005, between CUSH and each purchaser relating to the sale of 11,000,000 shares. Exhibit 99.4 Letter Agreement, dated January 7, 2005, between CUSH and Wedbush Morgan Securities Inc. ("WMS"), relating to WMS's appointment as agent of CUSH in the sale of shares. Exhibit 99.5 Agreement Regarding Issuance of Shares, dated September 15, 2005 between Infogrames Entertainment S.A. and Atari, Inc.* Exhibit 99.6 GT Interactive UK Settlement of Indebtedness Agreement, dated September 15, 2005 between Atari UK, Infogrames and all of its subsidiaries and Atari, Inc.* - ------------------ * Filed with this Amendment. SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: September 22, 2005 By: INFOGRAMES ENTERTAINMENT SA By: ---------------------------------------- Thomas Schmider Deputy Chief Operating Officer Dated: September 22, 2005 By: CALIFORNIA U.S. HOLDINGS, INC. By: ---------------------------------------- Thomas Schmider Director EX-99.5 2 ex99-5_092205.txt AGREEMENT REGARDING ISSUANCE OF SHARES EXECUTION COPY AGREEMENT REGARDING ISSUANCE OF SHARES September 15, 2005 Atari, Inc. 417 Fifth Avenue New York, NY 10016 U.S.A. Ladies and Gentlemen: This is to set forth the agreement between Atari, Inc. ("Atari"), a Delaware corporation, and Infogrames Entertainment S.A. ("IESA"), a French societe anonyme, regarding the issuance by Atari of shares of common stock, par value $0.01 per share, of Atari ("Common Stock") in satisfaction of obligations of Atari to IESA and/or its subsidiaries, which agreement is as follows: 1. At the closing described below, Atari will issue to IESA 4,881,533 shares (the "Shares") of Common Stock, to be applied at the rate of $1.30 per Share as follows: (a) 3,626,154 Shares will be applied in full satisfaction of a total of $4,714,000 due from Atari to subsidiaries of IESA for work performed and to be performed relating to the development of the Test Drive Unlimited and Stuntman 2 games, as reflected on the attached schedule. (b) 1,255,379 Shares will be applied to reduce month end net balances due from Atari and its subsidiaries (the "Atari Companies") to IESA and its direct or indirect wholly-owned subsidiaries (the "IESA Companies"), as provided in Section 2. 2. (a) If at the end of September 2005 or any subsequent calendar month through and including March 2006, the amount due from the Atari Companies to the IESA Companies exceeds the amount due from the IESA Companies to the Atari Companies, the $1.30 per share issue price of the Shares described in Section 1(b) will be applied in satisfaction of the net amount due from the Atari Companies to the IESA Companies until the entire issue price has been applied. (b) If at March 31, 2006, after applying the issue price of the Shares described in Section 1(b) as provided in Section 2(a) in satisfaction of net amounts, if any, due from the Atari Companies to the IESA Companies at the end of each month from September 2005 to and including March 31, 2006, any portion of that issue price has not been applied in satisfaction of net amounts due from the Atari Companies to the IESA companies, not later than April 10, 2006, IESA will pay the unapplied balance of that issue price to Atari in cash. 3. The closing of the issuance of the Shares to IESA (the "Closing") will take place on September 15, 2005, at Atari's offices, 417 Fifth Avenue, New York, NY 10016, at 10:00 a.m., New York City time. At the Closing: (a) Atari will deliver to IESA the certificates representing the Shares, registered in IESA's name. Each certificate shall bear a legend stating that the shares it represents were issued in a transaction that was not registered under the Securities Act of 1933, as amended, and those shares may be sold or otherwise transferred only in a transaction that is registered under that Act or is exempt from the registration requirements of that Act and any securities laws. (b) IESA will deliver to Atari a document stating that (i) all obligations of Atari set forth on the schedule to this Agreement relating to the development of the Test Drive Unlimited and Stuntman 2 games have been paid in full and (ii) acknowledging that the issue price of the Shares described in Section 1(b) will be applied in satisfaction of net month end balances due from the Atari Companies to the IESA Companies, or paid, as provided in Section 2. 4. IESA hereby acknowledges and agrees that all of the services rendered and expenses incurred by the subsidiaries of IESA in connection with Test Drive Unlimited and Stuntman 2 and all of the results and proceeds thereof (sometimes severally and collectively called "Elements" herein), were and shall continue to be performed in accordance with, and are subject to the terms of, Atari's standard developer agreement, including (a) with respect to Atari's ownership from inception and in perpetuity of all intellectual property rights or interests resulting from or arising in connection with such services such that, among other things, Atari is and shall be the sole and exclusive owner of all right, title and interest, including without limitation all copyrights, trademarks, and patent rights (and all extensions and renewals thereof throughout the world), in and to all such Elements, including all so-called engines, designs, game play, narrative, characters, textures, and processes created, adapted, commissioned or used by such subsidiaries in performing the Test Drive Unlimited and Stuntman 2 development work at any time, it being expressly acknowledged by IESA that all such work has been commissioned by Atari and rendered by the IESA subsidiaries on a "work-for-hire" basis from inception (and, to the extent that it is ever legally determined that such work or any Elements were not rendered or created on a work-for-hire basis, IESA hereby irrevocably grants to Atari a gratis, perpetual, exclusive, world-wide license with respect to any such Elements), and (b) standard warranties and representations from the IESA subsidiaries in favor or Atari that all Elements are delivered to Atari on an unencumbered, liability-free, fully paid-up basis such that Atari's exploitation thereof and of the games shall never (i) violate the laws or requirements of any jurisdiction, union or other entity, (ii) infringe the rights of any person or entity or (iii) require Atari to pay any sums or other consideration to any person or entity in respect of the Elements (other than those licensors identified on Exhibit 4 attached hereto and such other ordinary course license payments which Atari may hereafter agree in writing to accept). 5. Atari represents and warrants to IESA as follows: (a) Atari is a corporation duly incorporated and in good standing under the laws of the State of Delaware. (b) Atari has all corporate power that is necessary to enable it to enter into this Agreement and to carry out the transactions contemplated by it. All corporate actions necessary to authorize Atari to enter into this Agreement and carry out the transactions contemplated by it have been taken. This Agreement has been duly executed by Atari and is a valid and binding agreement of Atari, enforceable against Atari in accordance with its terms. (c) When the Shares are issued at the Closing as contemplated by this Agreement, the Shares will be duly authorized and issued, fully paid and non-assessable shares of Common Stock, and IESA will own the Shares free and clear of any liens, encumbrances or claims of other persons, other than liens or encumbrances imposed by reason of acts of IESA and restrictions imposed by U.S. Federal and state securities laws. 2 6. IESA represents arid warrants to Atari as follows: (a) IESA is societe anonyme duly formed and currently existing under the laws of the Republic of France, (b) IESA has all corporate power that is necessary to enable it to enter into this Agreement and to carry out the transactions contemplated by it. All actions necessary to authorize IESA to enter into this Agreement and carry out the transactions contemplated by it have been taken. This Agreement has been duly executed by IESA and is a valid and binding agreement of IESA, enforceable against IESA in accordance with its terms. (c) IESA is aware that the Shares will be issued to it in a transaction that will not be registered under the U.S. Securities Act of 1933, as amended, and that IESA may sell or transfer the Shares only in a transaction that is registered under that Act or is exempt from the registration requirements of that Act and any applicable U.S. state securities laws. (d) IESA will be acquiring the Shares at the Closing for investment, and not with a current view to the sale or distribution of the Shares. 7. This Agreement will be governed by the laws of the State of New York in the United States of America, without regard to principles of conflicts of laws that would apply the laws of any other jurisdiction. IESA and Atari each (i) agrees that any action or proceeding relating to this Agreement may be brought in, but only in, a state or Federal court sitting in the Borough of Manhattan in the State of New York, (ii) consents to the personal jurisdiction of any such court in any such action or proceeding, (iii) agrees not to seek to change the venue of any such action or proceeding brought in any such court, whether on the basis of convenience of the parties or for any other reason, and (iv) agrees that process in any such action or proceeding may be served by registered mail or in any other manner permitted by the rules of the court in which the action or proceeding is brought. 8. Any notice or other communication under this Agreement must be in writing, and will be deemed given when it is delivered in person or sent by email or facsimile communication, or on the tenth day after the day on which it is sent by mail, to the other of them at its principal office. 9. This Agreement and the documents to be delivered in accordance with this Agreement contain the entire agreement between Atari and IESA relating to the transactions that are the subject of this Agreement and those other documents, all prior negotiations, understandings and agreements between Atari and IESA with regard to those transactions are superseded by this Agreement and those other documents, and there are no representations, warranties, understandings or agreements concerning the transactions that are the subject of this Agreement or those other documents other than those expressly set forth in this Agreement or those other documents. 10. This Agreement may be amended by, but only by, a document in writing signed by both Atari and IESA. 11. This Agreement may be executed in two or more counterparts, some of which may contain the signatures of fewer than all the parties or may contain facsimile copies of pages signed by some of the parties. Each of those counterparts will be deemed to be an original copy of this Agreement, but all of them together will constitute one and the same agreement. 3 Please execute a copy of this document which, when it is executed by Atari, will constitute a legally binding agreement between IESA and Atari. Very truly yours, INFOGRAMES ENTERTAINMENT S.A. (for itself and each of its wholly-owned subsidiaries) By:_____________________________________ Title: Agreed to: ATARI, INC. (for itself and each of its wholly-owned subsidiaries) By:_____________________________________ Title: 4 SCHEDULE OF AMOUNTS DUE FOR DEVELOPMENT SERVICES Atari, Inc. R&D Financing (000's)
Costs Actual/Projection Apr-05 May-05 Jun-05 Jul-05 Aug-05 Sep-05 - --------------------------------------------------------------------------------------------------------------------------------- actual actual actual projection Paradigm Stuntman2 Xbox2 130 440 426 995 Paradigm Stuntman2 Xbox 49 16 16 -26 54 Paradigm Stuntman2 PS2 29 50 -10 69 actual actual actual actual Eden Test Drive Unlimited Xbox2 551 623 481 555 2,209 actuel actual actual Melbourne House Test Drive Unlimited PS2 459 470 457 1,386 - --------------------------------------------------------------------------------------------------------------------------------- 551 1,082 1,000 1,187 505 390 4,714 Cash Apr-05 May-05 Jun-05 Jul-05 Aug-05 Sep-05 - --------------------------------------------------------------------------------------------------------------------------------- Paradigm Stuntman2 Xbox 130 440 426 995 Paradigm Stuntman2 Xbox 65 16 -26 54 Paradigm Stuntman2 PS2 29 50 -10 69 Eden Test Drive Unlimited Xbox2 1,174 481 555 2,209 Melbourne House Test Drive Unlimited PS2 459 470 457 1,386 - --------------------------------------------------------------------------------------------------------------------------------- 1,857 1,456 1,402 4,714
ACKNOWLEDGEMENT LETTER September 15, 2005 VIA OVERNIGHT MAIL - ------------------ AND FACSIMILE (212) 726-4214 - ---------------------------- Atari, Inc. 417 Fifth Avenue, 8th Floor New York, NY 10016 Attn: Kristina K. Pappa Re: Acknowledgement in connection with sale of shares of Common Stock of Atari, Inc. (the "Company") pursuant to an Agreement Regarding Issuance of Shares (the "Agreement") Dear Ms. Pappa: Infogrames Entertainment S.A. ("IESA"), on behalf of itself and its direct or indirect wholly-owned subsidiaries, in connection with the sale by the Company to IESA of 4,881,533 shares of common stock, par value $.01 per share, pursuant to Paragraph 3(b) of the Agreement acknowledges and agrees that: (i) all obligations of the Company set forth on the schedule to the Agreement relating to the development of the Test Drive Unlimited and Stuntman 2 games have been paid in full; and (ii) the issue price of the Shares described in Section 1(b) of the Agreement will be applied in satisfaction of net month end balances due from the Company and its subsidiaries to IESA and its direct or indirect wholly-owned subsidiaries, or paid, as provided in Section 2 of the Agreement. Very truly yours, INFOGRAMES ENTERTAINMENT S.A. (for itself and each of its wholly-owned subsidiaries) By:________________________________ Name:______________________________ Title:_____________________________ Please execute a copy of this document which, when it is executed by Atari, will constitute a legally binding agreement between IESA and Atari. Very truly yours, INFOGRAMES ENTERTAINMENT S.A.(for itself and each of its wholly-owned subsidiaries) By:________________________ Title: Agreed to: ATARI, INC. (for itself and each of its wholly-owned subsidiaries) By:________________________ Title: EX-99.6 3 ex99-6_092205.txt GT INTERACTIVE UK SETTLEMENT GT INTERACTIVE UK SETTLEMENT OF INDEBTEDNESS AGREEMENT AGREEMENT, dated as of September 15, 2005, between Atari UK (f/k/a Infogrames UK) (AUK") and Infogrames Entertainment SA and all of its subsidiaries (collectively, "IE") (AUK and IE are referred to herein separately, and collectively as "IESA"), on one hand, both having an address of 1, place Verrazzano 69252 Lyon, Cedex 09 France and Atari, Inc. ("Company"), on the other, having an address of 417 Fifth Avenue, New York, NY 10016 (the "Agreement"). WHEREAS, in December 1999, IESA acquired a controlling interest in Company and its wholly-owned subsidiaries. Following this acquisition, AUK, a wholly-owned subsidiary of IESA, had paid certain expenses on behalf of GT Interactive UK ("GTUK"), a subsidiary of Company, the operations of which were discontinued in or about March 2000. The expense payments include amounts for various legal functions, settlements, account fees and taxes, trade payables and accrued liabilities; WHEREAS, AUK has asserted, or could assert, that Company is indebted to AUK for payments, liabilities and obligations based on any and all matters or circumstances arising or occurring at any time prior to or as of the date hereof (the "GTUK Indebtedness"); and WHEREAS, by this Agreement, IESA and Company hereby intend to resolve all matters of, concerning or related to the GTUK Indebtedness. NOW, THEREFORE, in consideration of the foregoing, the Fee and of the mutual promises set forth herein, it is hereby agreed as follows: 1. In full satisfaction of the GTUK Indebtedness, promptly upon the full execution hereof, Company shall pay AUK (or its designee) 1,263,518 shares of Company's common stock totaling in value 892,525 British pounds, each share priced at $1.30 (the "Fee") in full and final settlement and payment of the GTUK Indebtedness. 2. IESAA acknowledges, agrees and understands that the entire consideration for the releases and waivers given in this Agreement is that consideration set forth in paragraph 1 above; that said consideration is being given solely for the purpose of settling amounts due arising out of expense reimbursements or other amounts due and owing to AUK from Company. Any and all tax refunds or credits associated with GTUK (including the payment of the GTUK Indebtedness) shall be solely the property of, and inure solely to the benefit of, Company. 3. (a) IESA does hereby relieve, release and forever discharge Company and its predecessors, successors, representatives, employees, officers, directors (including, without limitation, former employees, officers and directors), shareholders, agents, employees, administrators, assigns and all affiliated, parent and subsidiary corporations, and each of them, of and from any and all claims, debts, liabilities, demands, obligations, promises, acts, agreements, costs, expenses (including, but not limited to, attorneys' fees), damages, actions and causes of action of whatsoever kind or nature, whether now known or unknown, based on, arising out of, or in connection with anything whatsoever done, omitted or suffered to be done at any time relating to, arising from, or in connection with all claims relating to, the GTUK Indebtedness, any other expense reimbursement made by IESA in connection with GTUK and any other amounts due to IESA in connection with GTUK. IESA hereby expressly, knowingly, and intentionally waives all rights and protections afforded in connection with the matters hereby released by the terms and provisions of California Civil Code section 1542 and by any and all similar laws of and for any other state of the United States and all foreign governments. California Civil Code section 1542 states that: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. In connection with such waiver, IESA hereby acknowledges that it hereafter may discover claims, obligations, rights, causes of action, claims for relief, liabilities, and facts, or any of them, in addition to or different from those that it now knows or believes to be in existence, accrued, or true with respect to the matters hereby released. Nevertheless, it is the intention of each party, through this release and with the independent advice of counsel or the opportunity to receive such advice, to fully, finally, and forever to settle and release all such claims, obligations, rights, causes of action, claims for relief, liabilities, and damages that heretofore have existed, now exist, or hereafter may exist in connection with the matters hereby released, including those that could have been filed. (b) Each of the parties hereto represents, warrants, and agrees as follows: (i) Each party has received independent legal advice from its attorneys, with respect to the advisability of making the settlement of indebtedness provided for herein, and with respect to the advisability of executing this Agreement; (ii) No party (nor any officer, agent, employee, representative, or attorney of or for any party), has made any statement or representation to any other party regarding any fact relied upon by the other party in entering into this Agreement, and each party does not rely upon any statement, representation or promise of any other party (or of any officer, agent, employee representative or alternate for the other party), in executing this Agreement except as expressly stated herein; (iii) Each party has made such investigation of the facts and the law pertaining to this Agreement and of all the matters pertaining hereto as it deems necessary; and (iv) Each of the persons executing this Agreement is empowered to do so. (c) Each party hereto represents and warrants to the other party that it is the sole and lawful owner of all right, title and interest in and to every matter and thing released 2 herein, and that it has not heretofore assigned or transferred, or purported to assign or transfer, to any person or entity any claims or other matters released herein. 4. This Agreement shall inure to the benefit of, and be binding upon, the respective assigns, subsidiaries and successors-in-interests to and of each party hereto. 5. This Agreement sets forth the entire understanding between IESA and Company with respect to the subject matter hereof, and no amendment to or modification, waiver, termination or discharge of this agreement or any provision thereof shall be binding upon IESA or Company unless confirmed by a written instrument specifically referring to this Agreement which is signed by an authorized signatory of each party. No waiver of any provision of or default under this Agreement shall affect IESA's or Company's right, as the case may be, thereafter to enforce such provision or to exercise any right or remedy in the event of any other default, whether or not similar. 6. THIS AGREEMENT IS ENTERED INTO IN THE STATE OF NEW YORK AND SHALL BE CONSTRUED ONLY IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS ENTERED INTO AND TO BE FULLY PERFORMED THEREIN (WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW PRINCIPLES UNDER NEW YORK LAW), AND THE COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY (MANHATTAN) ARE HEREBY GRANTED EXCLUSIVE JURISDICTION WITH RESPECT TO ANY SUITS ARISING OUT OF OR WITH RESPECT TO THIS AGREEMENT. 7. This Agreement shall not be construed against either party as the drafter, it being agreed that this Agreement has been drafted jointly by the parties and may be executed in one or more counterparts, including by facsimile, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. 3 IN WITNESS WHEREOF, the parties have executed this Agreement the date and year first above written. Atari, Inc. By:___________________________ Name: Title: ACCEPTED AND AGREED TO: Infogrames Entertainment SA By:___________________________ Name: Title: Atari UK By:___________________________ Name: Title: 4 IN WITNESS WHEREOF, the parties have executed this Agreement the date and year first above written. Atari, Inc. By:___________________________ Name: Title: ACCEPTED AND AGREED TO: Infogrames Entertainment SA By:___________________________ Name: Title: Atari UK By:___________________________ Name: Title: 5 -----END PRIVACY-ENHANCED MESSAGE-----